President Barack Obama, accompanied by Richard Cordray, speaks as he visits with William and Endia Eason Wednesday, January 4, 2012, at their home in Cleveland, Ohio. (AP Photo/Haraz N. Ghanbari)
Yesterday, the Washington Post reported that President Obama’s 2012 election strategy would feature a White House battle against an unpopular and intransigent Congress.
Today, the administration fired the first shot. Obama announced this morning his intention to use a recess appointment to nominate Richard Cordray to head the Consumer Financial Protection Bureau, the new regulatory agency that was created by the Dodd-Frank legislation but has been leaderless since the summer because of Republican obstruction in the Senate. “Today, I am appointing Richard as America’s consumer watchdog,” Obama said at a raucous event in Shaker Heights, Ohio, with Cordray at his side.
Recess appointments are common ways for presidents to install nominees the Senate won’t confirm. So common, in fact, that Republicans took pre-emptive measures and wouldn’t allow Congress to actually go on recess during this break—they held meaningless “pro forma” sessions at least every three days, where the session would be gaveled in and then gaveled out just as quickly.
But Obama went ahead and nominated Cordray anyhow. While the Justice Department under Bill Clinton said that Congress must be out of session for three days in order for a recess appointment to be valid, the White House rationale is that the entire pro-forma maneuvering is a “gimmick,” in the words of White House communications director Dan Pfieffer, and no such three-day timeframe exists.
As Ian Millhiser of the Center for American Progress explains, there is indeed legal precedent for this approach:
There was…a showdown during the Bush Administration over President Bush’s decision to recess appoint Judge William Pryor to the United States Court of Appeals for the Eleventh Circuit. In Evans v. Stephens, that court considered whether Pryor’s appointment was invalid because it occurred during a very short legislative break. This court is the highest legal authority ever to weigh in on the question of whether a break in the Senate’s calendar must last a certain number of days before a recess occurs, and it answered that question with an unambiguous “no.”
“The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today,” [the decision said].